THAILAND Law and Practice Contributed by: Chusert Supasitthumrong, John Frangos, Alongkorn Tongmee and Eric Meyer, Tilleke & Gibbins
5. Discovery 5.1 Discovery and Civil Cases
5.4 Alternatives to Discovery Mechanisms As described above in 5. Discovery , Thailand pro- vides for certain discovery mechanisms, albeit of a more limited scope than that found in jurisdictions with extensive discovery practice. 5.5 Legal Privilege Absent certain circumstances, licensed lawyers in Thailand are prohibited from disclosing confidential information about their clients. Additionally, under the Thai Penal Code, the disclosure of confidential infor- mation by a licensed lawyer or the lawyer’s assistant or trainee can constitute a criminal offence under cer- tain circumstances. If an in-house lawyer is licensed in Thailand, then the concept of attorney–client confidentiality will also apply in the same way that it would apply to external lawyers. 5.6 Rules Disallowing Disclosure of a Document A party on whom a subpoena for documents has been served can file a petition to dismiss the subpoena on certain grounds, including the following: • The requested document is irrelevant or the request is too broad or too vague to enable the party to identify the document or determine whether it is in its possession. • The request is overly burdensome. • The requested document does not exist or is not in the party’s possession. • Production of the requested document is prohib- ited by law. • Production of the requested document could potentially cause damage to a third party. • The requested document is confidential or privi- leged. However, the decision whether to enforce or dismiss the subpoena will be at the discretion of the court.
While discovery is available in civil cases, the mecha- nisms and procedures available to a party seeking discovery are limited in scope when compared to jurisdictions in which extensive discovery practice is common. The available mechanisms include both the production of documents and the taking of witness testimony. A party may present its own documentary evidence and witnesses during trial proceedings. It may also request that the court issue a subpoena to the opposing party to produce certain documents or witnesses at trial. If a subpoena for documentary evi- dence is requested, the scope of such request must be narrow and identify the document(s) to be pro- duced with specificity. As the available mechanisms are limited in scope, there is very little opportunity for a party to abuse these mechanisms, as can occur in other jurisdictions. Accordingly, other than the specificity required for a subpoena for documents mentioned above, there are no specific mechanisms by which the scope and/or costs of the discovery process can be curbed. 5.2 Discovery and Third Parties It is possible to obtain discovery of both documentary evidence and witness testimony from a third party. This will be done by asking the court to issue a sub- poena for a specific document or documents or for a The discovery process in Thailand is limited in scope. There is no formal pre-trial disclosure procedure. Par- ties are not required to produce lengthy initial disclo- sures or mandatory disclosures of the witnesses and documentary evidence on which they intend to rely during trial. Instead, under the Civil Procedure Code, each party is required to submit a list of witnesses and documentary evidence at least seven days before the hearing at which the evidence will be taken. For sup- plementary lists of additional witnesses or evidence, each party is required to submit this list within 15 days from the hearing at which the evidence was presented. third party to appear at trial to testify. 5.3 Discovery in This Jurisdiction
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